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With only a few hours left to the commencement of a National Environment Management Authority (NEMA) directive to the motoring public to have dustbins installed in their motor vehicles, senior lawyers insist the impugned directive is inconsistent with the constitution and warned the police should not go ahead to implement it.
In an interview with CEO East Africa Magazine Phillip Karugaba, one of the leading and most respected lawyers in Kampala and an Executive at the ENS Africa Uganda office said that the said directive is illegal as no one can be convicted for a none existing offence.
“The key issue is that an offence must be prescribed by law. NEMA has failed to show the provision under which this dustbin offence is created. The fines proposed for a non-existent offence are illegal,” Karugaba told this reporter on phone.
Article 28 (12) of the Constitution provides that, ” Except for contempt of Court, no person shall be convicted of a criminal offence unless the offence is defined and the penalty for it prescribed by law.”
He was responding to a March 21st press statement in which NEMA sought to defend its directive after the Uganda Law Society (ULS) had in a March 16th letter, challenged the same directive.
Bernard Oundo, the President, of Uganda Law Society, had in a letter to the NEMA Executive Director, Dr. Barirega Akankwasah, questioned the legality of the February directive.
“We refer to your press statement at the Uganda Media Conference on 8th February 2023 and to the notice on the express penalty scheme published on the National Environment Management Authority (‘NEMA’) website on the same day. Yoµ announced that effective 1st April 2023, NEMA will commence an administrative penalty scheme for offences under the National Environment Act 2019. You also announced that persons who drive cars would be required to carry dustbins and on default would face a fine of up to UGX 6,000,000/= (Uganda. Shillings Six Million). The Constitution provides that no person is to be convicted of a criminal offence unless the offence is defined and the penalty for it is provided by law,” ULS wrote.
“We have perused the National Environment Management Act, 2019 and have not found the offence of driving a car without a dustbin; for which NEMA would like to impose the above, mentioned fine. We will appreciate your, guidance on the legal basis for this offence and the prescription of the penalty,” the ULS President further asked NEMA.
In its defence, NEMA, in a press statement said the fines“are derived directly from the provisions of existing laws promulgated by Parliament”.
Quoting Section 172(1) of the National Environment Act No. 5 2019, NEMA said that “where the Authority, an authorized officer or environmental inspector has a reasonable belief that a person has contravened the provisions of the National Environment Act, the Authority, an authorised officer or environmental inspector may impose an administrative fine and serve a notice on that person”.
NEMA also quoted Section 172 (2) of the said Act, which provides that NEMA may require the person served with a notice under Subsection (1) to pay the administrative fine within the time prescribed in the notice.
“From the above provisions in the law, it follows that a fine can only be levied for a committed offence in the law. As such, the figures published by NEMA as maximum chargeable fines for environment breaches are derived from the National Environment Act, 2019 and since they are administrative fines, they are in all cases below the maximum stated in the law and in most cases as low as 50% of the maximum prescribed in the Act,” NEMA further said.
“In addition, the matter of having a trash bin in a vehicle is a means to enforce section 97 of the National Environment Act which addresses the prohibition of littering. Sub-section 3 of section 97 says a person driving a vehicle is responsible for the sanitary condition of the vehicle and for the waste generated therein,” NEMA further said.
However, in an interview with this e-magazine, Bernard Oundo, the ULS President insisted NEMA’s response was unsatisfactory and inconsistent with the law.
“We would like to reiterate that the dustbin offence does not exist and the Constitution provides you cannot be convicted unless the offence is defined and the penalty is prescribed. To that extent, the dustbin offence has no legal basis and we must caution the police not to implement a non-existent offence,” he warned.